Linux and the GPL: A Storm Erupts

"This is a hard one," Google+ blogger Gonzalo Velasco C. mused. "The development of FLOSS in such a capitalist and competitive world demands solidarity, talent, idealism and passion. So when it comes to discussing the inclusion (without malice) of not-FLOSS code inside Linux, things get very hot -- that's when the passion comes in."

By Katherine Noyes
Nov 26, 2012 5:00 AM PT

Now that Thanksgiving has come and gone in the land of stars and stripes, it's a pretty safe bet that blood pressures are rising and tensions are high here in the Linux blogosphere.

The holiday season is hard upon us, after all, and Linux Girl, for one, has resorted to her preferred coping strategy of warming the barstools down at the blogosphere's seedy Punchy Penguin Saloon. This too shall pass, thank goodness -- why not enjoy a few Tequila Tux cocktails along the way?

Anyhoo, it was during one of her extended sojourns at said establishment that Linux Girl recently overheard what sounded like the start of a fierce brawl.

'Please Explain'

"Your company appears to be shipping kernel features in RTS OS that are not made available under the GPL," charged Linux developer Andy Grover, a software engineer at Red Hat, in
a posting on the kernel developer mailing list directed at Nicholas Bellinger, cofounder and CTO at RisingTide Systems.

RTS OS is a unified storage operating system from RisingTide, which is a Red Hat competitor.

"Your company appears to be violating the GPL," Grover added. "Please explain."

Here in the Linux community, of course, one would be hard-pressed to come up with a weightier accusation, as Bellinger was quick to point out.

'We Are Not Violating GPL'

"Andy, accusing us of violating GPL is a serious legal claim," Bellinger wrote
in response. "In fact, we are not violating GPL.

"In short, this is because we wrote the code you are referring to (the SCSI target core in our commercial RTS OS product), we have exclusive copyright ownership of it, and this code contains no GPL code from the community," he explained.

Was the dispute resolved politely over a nice cup of tea? No, it was not. In fact, it hasn't yet been resolved at all. Instead, lawyers, GPL experts and, of course, the debate-loving Linux masses have been quick to get involved.

'When Will the Dinosaurs Get FLOSS?'

Close to 400
comments appeared in short order on Slashdot, for example, and at least as many could be heard down at the Punchy Penguin Saloon.

Linux Girl took it upon herself to record some of the highlights.

"Achhh! When will the dinosaurs get FLOSS?" exclaimed blogger
Robert Pogson, for instance.

'Does Greed Have No Limits?'

"FLOSS is a huge advantage to any business," Pogson explained. "To get the best advantage of FLOSS they have to 'give back,' sharing what they add to FLOSS.

"How simple can it be? If you get free ice-cream and you add sprinkles, why try to charge the children for the ice-cream?" he added. "Does greed have no limits?"

The best strategy is to "sell hardware and service," Pogson advised. "You don't need to sell software."

'No One Owns Ideas'

Software is a service, "but you should expect to do some work making money from it," Pogson added. "Creating software is not a license to print money. Software is an expression of ideas common to all people: arithmetic, logic, movement. It's not magic, and no one owns ideas."

In short, "businesses run by people who think they can have the benefits of FLOSS without giving back are rude, selfish people who deserve to be shunned," he concluded. "The world can buy products and services from more enlightened beings."

Indeed, "I find GPL violators seem to take a 'What's mine is mine and what's yours is mine' thought process, where they focus only on the amount of work they put into their own product while ignoring the order of magnitude more work that others put in before them," consultant and Slashdot blogger Gerhard Mack agreed.

'Exploited by Both Sides'

And again: "What a mess," opined
Chris Travers, a blogger who works on the LedgerSMB project. "The fact is that neither the GPL nor copyright law is that clear on this area, and the resulting open questions are exploited by both sides."

In the United States, at least, "one key consideration is that practical elements are not given copyright protection, and expressive elements are only given protection to the extent that they can be separated from the practical elements," Travers pointed out. "For this reason, each individual recipe in a cookbook is not subject to copyright protection, but the selection, ordering and layout may be.

"I think the way this would have to be applied to software would be that use of interfaces would get no more protection than a recipe in a cookbook, but copy of code beyond what is necessary for interoperability purposes might give rise to copyright violations (so header files would be subject only to very weak protections, while .c source files would get stronger protections)," he added.

'You Have to Show a Lot More'

Then, too, there's the fact that "the court said in SCO v. IBM that derivation was not transitive," Travers noted. "In other words, if program A is derived from program B, and program B is derived from program C, you still have to prove that expressive elements of program C made their way into program A in such a way as to make it a derivative work."

So again, "the wrapper/proprietary driver approach is unlikely by itself to be sufficient to implicate the GPL, assuming that 'based on' in the GPL means 'based on' in copyright law in the sense that a movie is 'based on' a book, and mere aggregation means the same thing as a compilation in copyright law," he said.

Of course, "I am not a lawyer," Travers added, but "I think that you have to show a lot more than just linking before the GPL comes into play. An actual fork of Linux would be bound by the GPL, but a mere piece of software that links might not."

Sooner or later, though, "these issues will have to be decided by the courts," he concluded. "This level of uncertainty cannot be maintained forever."

'Why Is Anybody Listening?'

There's not much difference between what RisingTide is doing and what Nvidia does, Slashdot blogger hairyfeet suggested.

"And why is anybody listening to a competitor making claims? If MSFT said Linux gives you cancer and Apple said Linux would make you poor, would you believe them, or even give their words a second thought?" hairyfeet pointed out. "So why in the world would you listen now?

"This helps Red Hat even if there isn't a shred of proof (which FYI there isn't, they haven't shown a single shred of evidence before making libelous claims) because it makes a competitor look shady even if they are not," he concluded.

'FLOSS Should Be FLOSS'

Last but not least, "this is a hard one," Google+ blogger Gonzalo Velasco C. mused.

"The development of FLOSS in such a capitalist and competitive world demands solidarity, talent, idealism and passion," he explained. "So when it comes to discussing the inclusion (without malice) of not-FLOSS code inside Linux, things get very hot -- that's when the passion comes in."

In general, it's OK to use a proprietary utility if necessary -- "it's not a sin" -- but "FLOSS should be FLOSS all the way," Gonzalo Velasco C. opined. "Otherwise things get messy."

In the case of the SCSI target implemented, "that has some FLOSS work done around it; now it is a hybrid!!?? If you want to avoid legal disputes in the future (does Oracle vs Google ring a bell!?),
get rid of that now!" he advised.

"You never know if Microsoft or Apple might end up buying the company that has the right to that little piece of code," he concluded. "In fact, knowing them, they are most certainly buying it just to kill GNU/Linux."

Katherine Noyes has been writing from behind Linux Girl's cape since late 2007, but she knows how to be a reporter in real life, too. She's particularly interested in space, science, open source software and geeky things in general. You can also
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Google+.